SUPREME COURT OF INDIA
C.P. AGRAWAL …PETITIONER
P.O. LABOUR COURT & ANR. …RESPONDENT
DATE OF JUDGMENT: 29/10/1996
BENCH: K. RAMASWAMY, G.B. PATTANAIK
J U D G M E N T
These appeals are by the employees of the Steel Authority of India andthe grievanceof the appellants in each of these appealsis that theywere illegallynot considered forpromotion to the higher gradewhen their juniors were being promoted. They had approached the Labour Court under Section 33-A of the Industrial DisputesAct (hereinafter referred to as “the Act”) alleging therein that their serviceconditions have been altered to their disadvantages while the Reference Case No. 39 of 1973 was pending. The Labour Court passed anAward on 17.1.1991 holding that the application under Section 33-A ofthe Industrial Disputes Act was maintainable and there has been alteration in the conditions of service while a reference was pending before theLabour Court. Ultimately the Labour Court gave direction in the case of Shri C.P. Agarwal, appellant in Civil Appeal No. 11360 of 1995 to promote him to thepost ofconstruction supervisor Grade I with effect from 6.6.1971.Additional, DivisionalEngineer with effect from 30.6.87 with all consequential benefits. The said Award of the Labour Court in favour of Shri Agarwal has been given effect to and due promotion has been given to him. The Steel Authority of India, however, approached the High Court of Patna against the aforesaid Award of the Labour Court. The Authorities also approached against the similar Award which are thesubject matter in other connected appeals. The High Court by judgment dated 8.9.1995 cameto hold thatthe provisions of Section 33-A of the Act will not be attracted since promotion doesnot fall within the expression ‘conditions ofservices’ and any change in the rules of promotion willnot tantamount tothe alteration in conditions of service during the pendency of the dispute before the Labour Court. Writ Application filed by the Steel Authority of India having been allowed and the Award of the Labour Court having been set aside the employees approached this Court in these appeals.
The learned counsel for the appellants in different appeals reiterated their contention that the High Court committed grosserror in coming to the conclusion that the promotion cannot be held to be condition of service and alteration in the Rules of promotiondoes not tantamount to change in conditions ofserviceattracting Section 33-A ofthe Industrial Disputes Act. Dr. A.M. Singhvi, learned senior counsel appearing for the respondents, on the otherhand apart from supporting the conclusionof theHigh Court contended on merits that the case of each of the appellants were dully considered whenever the promotion fell due and on being considered they having been found unsuitable have not been promoted and their juniors were promoted.
Accordingly itis contendedthat there has been no infringement ofthe appellants’ constitutional right of beingconsidered enshrinedunderArticle16 ofthe Constitution and consequently on merits theappeals are liable to be dismissed. When these appeals were heard for considerable length of time on 1.5.1996, this Court passed the following order :- “After hearing counselon both sides forconsiderable time, we find that Rule 11 of Part II of the Seniority& Promotion Rules prescribesfor promotion. Rule 11(1) prescribesprocedure for promotion and selection grade post namely, post in the scale of Rs.
550-1100/- and Rs. 1450-1750/- and above onthe basis of merit-cum- seniority. Under sub-rule (ii) for non-selection posts, promotion subject tothe elimination of the unfit. The Tribunal in the award in CA Nos. 11567-73/95 at page 191 of the paperbook pointerout the names of ten employees and their dates ofinitialappointment as C.S. Grade III and promotion to the post ofCS Grade IIand I respectively fromthe years 1971 to 1986. It is not in dispute that the promotion from CS Grade I to E- I, E-II and E-III are based on merit cum seniority covered by clause (1)of Rule 11 of Part II.
The question arises whether their cases havebeenconsidered and were notpromoted according to merit cumseniority basis. The Tribunal,unfortunately,without making anydistinction whether it is a selection post or a seniority post hadgivendirections to promote the appellants from the dates inwhich their respective immediate juniors stood promoted to E-I post.The High Court has not dealt with this aspectof the matter inparticular but proceeded on the ground oflimitation and non-maintainability ofthe application filed under section 33- A and also omission to implead the personswhowerepromoted superseding the appellants.
Dr. A.M.Singhvi, thelearned senior counsel appearingfor the respondent has pointed out to us placing achart in which all the persons have beenconsidered by the Departmental Promotion Committee in the years 1988, 1990, 1992 and 1994 and either they were found or not found eligible, found qualifiedand promoted from the respectivecadres. This contention was basedupon the averments made in the additional counter affidavit filed inthis court to which rejoinderaffidavit was filed denying those averments. In view of the denialby theappellants, it becomes necessaryto peruse the record ofthe consideration by the DPC inthe respective years mentioned hereinbefore. Dr. Singhvi is directed to produce the record with an affidavitexplaining how they havebeen dealt with. Dr.
Singhvi isalso directed to supply a copy ofthe affidavitto the appellants. He seeks forand is granted six weeks time to do the needful.Thereafter, thecounsel for appellants are at liberty to file the affidavit on the basis of the allegations in the affidavit.
List the matters immediately after vacation.” Pursuant to the aforesaid direction necessary records were produced alongwith affidavits indicating how the case of eachof theappellants hasbeen duly considered.The counsel appearing for the appellantswere also granted inspection of those records. Reply affidavit has been filed on behalf of the appellants, not disputing the fact of their consideration, as alleged bythe respondents but alleging that the records produced were not the original records and as such, no reliance can be placed on these records. We are unable to accept this submission made by the learned counsel appearing for the appellants. We have ourselves perusedthe records produced and we have no hesitation to come to the conclusion thatthe records indicate consideration of the appellants casefor promotionwhenever it fell due and the appropriate authorities have found them unsuitable on some occasion whereas on some other occasion the appellants themselves havenot applied for promotion and as such there has been no limitation of Article 16 of the Constitution in the matter of consideration of appellants for promotion. We find noforce in the submission made bythe learned counsel for the appellants that the records produced are manufactured ones and are not original. It is not possible for a Public Undertaking to manufacture records andthat also inrelation to the years 1977 to 1983. It is apparent from the order of this Court dated 1.5.1996 the High Court did notconsider the questionas to whether the cases of the appellantswere consideredon the principle inthe executive cadrefrom the Grade E-1 to E-II and E-III and disposed of the matter merely onthe ground ofnon maintainability of application filed under Section 33-A of the IndustrialDisputes Act. The respondentswere called upon by this Court, and to appreciate, the stand taken by the respondentsto the effect thaton each and every occasion thecase of the appellants hasbeenduly considered buton account of their unsuitability no promotion has been given to them. The records having been produced beforeus andon perusal of the said records we are satisfied that thecase of promotion of the appellants has been duly considered whenever itfell due andthe Appropriate Authorityhas found them unsuitablefor promotion. Though there is some force with regard to the promotion of one R.B. Prasad who had been given a jump from L-6 innon-executive cadre to e-I in the executive cadre and theexplanation offered by Dr. Singhvi, learned senior counsel appearing forSteel Authority of India onthat score is not very satisfactory yet we are not prepared to annul the said promotion madein the year 1975 after lapse of 20 years.
Mr. Krishnamani, learned senior counsel appearing for the appellant in Civil Appeal No. 11360 of the 1995 as well as the learned counsel appearingfor the respective appellants in other appeals in courseof their arguments urged that the stand taken by the respondents-Steel Authority of India before the LabourCourt was something different fromthe stand they have taken in this Court to examine the question as to whether infact the appellants were consideredfor promotion and were found unsuitable, as urged by Dr. Singhvi,learned senior counsel appearing for the respondents. We are unable to appreciate this contention in viewof ourearlier orderdated 1.5.1996.The earlier order clearly indicates the respective stand of the parties and called upon the respondents to produce the relevant record to findout whether infact the appellantswere considered forpromotion at different point of time, as urged by Dr. Singhvi,learned senior counsel appearing for the respondents or not. Apart from filing affidavit of one Anupam Anand, Manager (Personnel) of the Steel Authority of India and explainingthrough different charts, annexed as Annexures 1 to 3 to the saidaffidavit, indicatingthe details of each occasion how the case of each ofthe appellants hasbeen duly considered,we have alsogone through the relevant records produced beforeus and going through the same we are satisfied that the case of each of the appellantshas been duly considered whenever they have applied for promotion but they were found unsuitable and as such they have not been promoted. On some occasion they have not applied for promotion and, therefore, the question of consideration of their case at that point of time did not arise.In the aforesaid premises we find no infraction of Article 16 of the constitution in the matter of promotion to different grades both in the non executive and executive cadre, as alleged by the learned counsel appearing forthe appellants andwe are alsoof the opinion thatthe constitutional rights of the appellants for being considered has not been infringed in any manner. We, therefore, do not find any substance inthese appeals for ourinterference under Article 136 of the Constitution. In view of our aforesaid conclusion while we are dismissing all the appeals but so far as appellant C.P. Agarwal is concerned, he having already been promoted pursuance to the order of the Labour Court, the said promotion may not be interfered with and he may notbe reverted to any lower post fromthe post to which he has already been promoted. But his order of ours in relation to Shri Agarwal may not be treated as a precedent for other employees similarly placed. The appealsare dismissed withthe aforesaid observation but inthe circumstances there will be no order as to costs.